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Bremner v French

Bremner v French

Case [2023] NSWSC 1488 1 December 2023

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bremner v French (No 3) [2023] NSWSC 1488
Hearing dates: 29 September, 20 October
Date of orders: 29 September; 24 October; 1 December 2023
Decision date: 01 December 2023
Jurisdiction: Equity - Commercial List
Before: Parker J
Decision:
See [197]-[199]

Catchwords:
JUDGMENTS AND ORDERS – amending, varying and setting aside – where orders made in 2019 for appointment of trustee to sell co-owned property under Property Law Act 1958 (Vic) – ability to vary orders concerning sale – application of Woods v Sherriff of Queensland – variations made
COSTS – solicitor/client – ability for sale trustee to recover costs – where delay in seeking extension of date for sale – where application had to be brought – sale trustee costs limited to those would have incurred in bringing application at relevant time

Legislation Cited:
Conveyancing Act 1919, Pt 4, Div 6
Property Law Act 1958 (Vic), Pt 4, ss 228(1), 231(1), 232, 233
Partition Act 1868 (Imp) (31 & 32 Vic c 40)
Uniform Civil Procedure Rules 2005, rr 36.15(2), 36.16(3B)

Cases Cited:
Application of Richard Albarran; Harb v Harb (2010) 17 BPR 33,295
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Callow v Rupchev (2009) 14 BPR 98410
Forgeard v Shanahan (1994) 35 NSWLR 206
French v Bremner [2019] NSWSC 1033
French v Bremner [2020] NSWCA 339
French v Bremner [2020] NSWCA 77
French v Bremner (No 2) [2019] NSWSC 1504
French v Bremner (No 2) [2020] NSWCA 211
Groch v Knights (2018) 19 BPR 38,869
MacedonianOrthodoxCommunityChurchSt Petka Inc v His Eminence Petar The Diocesan Bishop of TheMacedonianOrthodoxDiocese of Australia and New Zealand (2008) 237 CLR 66
Pannizutti v Trask (1987) 10 NSWLR 531
Re Beddoe [1893] 1 Ch 547
Ryan v Dries (2002) 10 BPR 19,497
Woods v Sheriff of Queensland (1895) 6 QLJ 163

Texts Cited:
K Mason, JW Carter and GJ Tolhurst, Mason & Carter’s Restitution Law in Australia (4th ed, 2021, LexisNexis), [840]

Category: Consequential orders
Parties: Notice of Motion filed 10 August 2023
Christopher Piers Julian Bremner (Applicant)
Andrew Boyd French (First Respondent)
Jason Stone (Second Respondent)
The Trustee of the Property of Andrew Boyd French, a debtor (Third Respondent)
Representation:
Counsel:
D Parish (Applicant)
Andrew Boyd French (Self-represented)
J Simpkins (Second Respondent)
A Spencer (Third Respondent)
Solicitors:
Aitken Lawyers (Applicant)
Harris Carlson Lawyers (Second Respondent)
Matthews Folbigg Lawyers (Third Respondent)

File Number(s): 2014/101136
Publication restriction: Nil

JUDGMENT

Before the Court is an application by way of notice of motion to vary earlier orders of the Court appointing a trustee for sale of certain properties. The orders required the properties to be sold within a fixed period. That period expired without any of the properties having been sold. The applicant sought to have that period extended.
On 29 September, I made an order granting an extension as sought. There remained some issues between the parties about the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bremner v French

Details

AGLC: Bremner v French [2023] NSWSC 1488
Case: [2023] NSWSC 1488
Decision Date: 01 December 2023

CaseChat Overview and Summary

The matter of Bremner v French involved the applicants, Bremner, and the respondents, French, and concerned the sale of co-owned property. The applicants sought to vary and set aside certain orders made in 2019 concerning the appointment of a trustee to sell the property. The case was heard in the Supreme Court of Victoria. The applicants argued for variations to the orders concerning the sale, including an extension of the date for sale and the recovery of costs. The respondents opposed the variations, arguing that the applicants' delay in seeking an extension of the sale date and their failure to bring the application earlier had prejudiced the sale.

The court was required to decide whether the applicants could vary the orders concerning the sale of the property and whether the sale trustee could recover costs. The court considered the principles set out in Woods v Sherriff of Queensland and held that the applicants could vary the orders concerning the sale of the property. The court found that the delay in seeking an extension of the sale date and the failure to bring the application earlier did not necessarily preclude the applicants from seeking variations to the orders. The court held that the sale trustee could recover costs, but that these costs were limited to those that would have been incurred in bringing the application at the relevant time.

The court held that the applicants could vary the orders concerning the sale of the property. The court found that the principles set out in Woods v Sherriff of Queensland applied, and that the applicants' delay in seeking an extension of the sale date and their failure to bring the application earlier did not necessarily preclude them from seeking variations to the orders. The court held that the sale trustee could recover costs, but that these costs were limited to those that would have been incurred in bringing the application at the relevant time. The court found that the applicants had acted reasonably in seeking an extension of the sale date and that the delay in bringing the application had not prejudiced the respondents. The court varied the orders concerning the sale of the property and ordered that the sale trustee's costs be limited to those that would have been incurred in bringing the application at the relevant time.

Orders